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Neil B
Yo peeps.

I could have sworn I retired from this but hey ho, needs must.

Sorry I don't have full details of this yet but a friend has been handed a bailiff letter -- just last night.

Basically, paid PCN at discount but allegedly too late (I'll be checking all that when I get a look at docs)

On arrival of Charge Cert and/or OfR victim 'fell' for a verbal Newham promise inviting an explanation letter with a
promise to consider exercising discretion --- yeah right!

Hence bailiff turns up + circa £420 (sounds about right).

Two possibly helpful pieces of info: Please advise if either of these useful -----

1/. The victim is already on a 'Debt Management Programme' ? I doubt this has any effect but interested to hear opinions.

2/. The vehicle concerned is 'Mobility' and hence, I understand, not owned by her. Does that obstruct the bailiffs possible actions? -- and then where do we go from there?

Ta.
Mr Mustard
A bailiff should not clamp a Motability car as it does not belong to the debtor. If she tells them that and gives them the details of her debt payment plan they'll probably decide to not bother further, that, or they will clamp the car anyway which leaves the motorist ringing the council and complaining and to the bailiff company telling them to look at the DVLA details. The Bailiff in Barnet did this to one of the people I was helping. I started ringing up the management tree, it was lunch time, so I got up 3 levels with only the Chief Operating Officer to go when the bailiff rang his office for instructions and unclamped. He was still rude despite being in the wrong. Every PCN for that person was then cancelled by the council in compensation. Result as we were in double figures (don't ask).

The other thing is not to open your door to a stranger and don't leave a window open that a bailiff can climb through.
Neil B
Thanks mustard; I did think so but you'll understand I want to be on sure ground in such a matter.

Yeah, I know the rules re opening the door -- and I've just slapped her for opening it to me without asking who!!!!

On the mobility issue, presumably bailiffs can only attempt to recover money through other goods then?

Another basic question, as I've been out of the loop for a while: >>
Although owned by the mobility Co or agent or whatever they are, the car must be registered to her as the PCN (postal) was sent to her?
(She holds no VR Doc.)
Is that how it works?

-----------------

TE9 and 7 being submitted on the basis PCN already paid. I'm satisfied, from talking to her that it was paid in time but we are somewhat lacking proof.
Nevertheless, I'm satisfied she believes so.

After that, PCN details will follow here and it's hilarious. She had the cheek to use a loading bay to load - and got rejected.

The future problem will be how to get it back to an avenue of appeal; On the face of it at the moment I can't think how.

For now, first things first and TEC here it comes.
Mr Mustard
For some reason for a PCN debt bailiffs only ever seem to bother with vehicles, quick and easy and usually cover the debt I suppose.

The V5 will have both the name of Motability and the person who drives the car listed. I think you can find that in the FAQ on the Motability website.

I forgot that the bailiff should also have a policy for dealing with vulnerable individuals which someone who gets the higher rate component of the motability bit of Disability Living Allowance must be. Barnet Council can't seem to find theirs!

If your TE7/TE9 are accepted then the case will be referred to PATAS in London or the TPT outside of London and they will want to see proof of payment or you will be back where you started. Best get searching, presume it was by cheque or credit card. Get a duplicate statement if the original is lost?

I think that TE7 often get routinely rejected and then you have to pay £80 to appear in front of a District Judge at the local county court after filing form N244. Is it worth it if there is no car that can be seized?
bama
£420 sounds high to me
be a miracle if they were not over charging as thats the norm.
get a breakdown from them - they have to supply it
Neil B
Yeah I was shocked to see there was no breakdown of costs on the bailiff letter. (Iwon't name them until TEs safely in)

Also - bailiff letter was hand delivered yesterday - nothing else apparently said??? but dated over a week earlier.

-------------

Mustard - on payment, that isn't in dispute; It was paid at discount and the dispute is only over whether or not in time.
So, if TEs accepted then I don't see any opportunity to appeal the laughable PCN - sadly.
DastardlyDick
If you look at the new Registration Documents it says in large letters across the front of it that the Registered Keeper is not necessarily the Legal Owner.
Enceladus
QUOTE (Neil B @ Fri, 10 Jan 2014 - 21:28) *
On the mobility issue, presumably bailiffs can only attempt to recover money through other goods then?

Another basic question, as I've been out of the loop for a while: >>
Although owned by the mobility Co or agent or whatever they are, the car must be registered to her as the PCN (postal) was sent to her?
(She holds no VR Doc.)

The bailiff cannot clamp or impound the Motability car as it is simply not her property. However they may well try it on in an attempt to intimidate the victim or a sympathetic neighbour or relative into paying up.

Document V188 published by the DVLA says this in Section 1 on page 5:
"For Motability contract hire vehicles: Motability will arrange to tax your vehicle each year and send the tax disc to you. As Motability registers the vehicle and holds the Registration Certificate (V5C) for the duration of your contract you must tell them of any changes to your address to ensure you get the disc on time.
Note: this does not apply to a vehicle that has been obtained on hire purchase from Motability."


This seems to come from some arrangement between the DVLA and Motability Operations to allow the cars to be taxed in the disabled class without the need to check that the end user has a valid certificate of entitlement or a DLA 404 (obsolete?) or WPA0442 or MHS 330 on the day the VED is due.

Motability will provide a copy of the V5c, if requested, since it may well be needed for parking permit applications, toll concession applications and the like.

The V5c will show the registered keeper in the form First Name, Last Name, Unique Ref Number and then the end users address. EG. the VQ5 response to a VQ4 query might be Miss Felicia Skoda (12345), address, etc. Motability Operations are not mentioned anywhere. Documents like the NTO should match.

I understand you to mean that the appellant had reps refused, discount was re-offered and the discounted charge was paid. Newham claimed that this was late? Have a look at PATAS key case 2020298182 (Reduced Penalty; Reduced penalty; payment outside discount period; cheque cashed; effect;) McGow v Richmond Upon Thames. The former Chief Adjudicator said:
"The Council would, of course, still have to take steps to enforce the penalty within a reasonable time: Davis v Kensington & Chelsea (PATAS Case Number 1970198981).
Council's should have in mind also that informing the motorist promptly that the Council will be enforcing full payment is important. This is because if there is any delay in doing so the motorist may assume the matter is closed and dispose of relevant papers. In such cases, the Adjudicator will be mindful of whether the requirement of a fair trial can be satisfied."
Neil B
QUOTE (Enceladus @ Sat, 11 Jan 2014 - 00:29) *
I understand you to mean that the appellant had reps refused, discount was re-offered and the discounted charge was paid. Newham claimed that this was late? Have a look at PATAS key case 2020298182 (Reduced Penalty; Reduced penalty; payment outside discount period; cheque cashed; effect;) McGow v Richmond Upon Thames. The former Chief Adjudicator said:
"The Council would, of course, still have to take steps to enforce the penalty within a reasonable time: Davis v Kensington & Chelsea (PATAS Case Number 1970198981).
Council's should have in mind also that informing the motorist promptly that the Council will be enforcing full payment is important. This is because if there is any delay in doing so the motorist may assume the matter is closed and dispose of relevant papers. In such cases, the Adjudicator will be mindful of whether the requirement of a fair trial can be satisfied."


Oh superb Sir!! The adjudicator has actually made the same points there that she expressed herself - it's feckin sneaky basically, just because there is no direct requirement in legislation to advise of further pursual.

I actually think she did pay in time (and her honest belief in that is enough to make the OOT application).

BUT - Newham take so long to open any mail that this wasn't just a matter of clearing a cheque. I'm hoping she'll find the stub with a date.
She daftly sent the rejection back with payment so we're a bit lost on dates to start with (I note Davis above!) but it should all come out in the wash.
I only noticed through looking at this that postal payments go to the very same address as challenges and reps -- and we know how long they take to look at those!

-------------------

Some basic questions coming in a mo re the TEC forms -- cos I'm not up to date innit. >>>>>

Neil B
Ok, these are probably daft questions: _


1/. As I recall, neither of the TE forms need witnessing; Is that correct?

2/. I have previously submitted by FAX to TEC -- do they still accept that and does anyone have the number (the one straight through to processing?)

3/. I notice members here talking about submitting by e-mail - which would be great but raises the following >
a) If she completes the form as is possible by typing into the downloadable word doc - how does she sign it?
b) If it has to be hand signed can I print it to sign, then scan and send as a jpeg attachment?

Ta

Oh - and anything else you think I might have forgotten; Must be something.
Enceladus
QUOTE (Neil B @ Sat, 11 Jan 2014 - 15:35) *
Ok, these are probably daft questions: _


1/. As I recall, neither of the TE forms need witnessing; Is that correct?

2/. I have previously submitted by FAX to TEC -- do they still accept that and does anyone have the number (the one straight through to processing?)

3/. I notice members here talking about submitting by e-mail - which would be great but raises the following >
a) If she completes the form as is possible by typing into the downloadable word doc - how does she sign it?
b) If it has to be hand signed can I print it to sign, then scan and send as a jpeg attachment?

Ta

Oh - and anything else you think I might have forgotten; Must be something.

A Witness Statement and the associated Out of Time application do not need to be witnessed. A Statutory Declaration and the associated Out of Time application (in respect of bus lane and moving traffic offences) do need to be witnessed.

You could try these fax numbers. 0845 408 5317 / 0845 408 5318

Print the forms, complete by hand if not typed, sign and then scan them as PDF. 150dpi will be fine. Then attach the PDFs to an email, the email address is on the form. tec.bulkcentre@hmcts.gsi.gov.uk I believe. I suspect that jpegs can also be used but the files will be bigger. I always use PDF and nobody has complained.

Did she receive the OFR? What date is on it?

Below are the TEC rules concerning OOT applications.

QUOTE
Purpose – to grant / refuse permission for the respondent to file their stat dec / witness statement late. You are not looking for anything else e.g. whether the penalty charge is valid etc.
-------------------------------------------------------------------------------------------------------
Begin by reading the respondent’s reason on the OOT for not responding
within the time limit.

Tip: If they do not answer the question (they refer to the original contravention only or write about payments made etc), refuse the application.

Tip: If the respondent has provided a valid reason why they could not make the deadline and were unable to apply for a time extension and they provide proof (holiday tickets / hospital letter etc), grant the application.
If the respondent has provided a valid reason why they could not make the deadline and were unable to apply for a time extension, but you are still unsure of their reasons (no proof enclosed), read the statement provided by the LA to make the decision.

Tip: If the LA do not send a full statement but simply advise they reject the application, automatically grant the application. If the respondent states that they moved addresses, check the system details for the date of the move ….

Tip: If the respondent has stated in their OOT that they have moved address before the notice to owner (NTO) was served or provided dates of when they moved so we can see the NTO was not served, the COO should be accepted.
If the LA state in their rejection that they obtained the address from the DVLA but the respondent moved before NTO, the COO would still be accepted.
If they have only stated that they moved address and have provided no details, the COO would be refused. If the respondent admits that they did not notify the DVLA of their address change, the COO would be refused.
Neil B
I queried the absence of an OfR with her when I saw the docs on Friday.
No explanation and she doesn't appear to recognise what I'm talking about --- so --- I can only assume it didn't arrive -- but rather odd.

Sequence of events was >>

Received rejection to reps on a postal PCN. Discount re-offered, as is their policy. Victim states, and believes, this paid and in-time.

Next received Charge Cert which itself is flawed as it demands conflicting amounts - a) £130 and, lower down, £195. (possibly rendering it unlawful?)

In response to the Charge Cert she phoned Newham to point out the PCN had been paid. She has the name of the person she spoke to and I have asked her to check if there is a record of this call on her phone account.
She was told that payment was received "late", presumably meaning outside the extended discount period. BUT, interestingly, Newham apparently stated this was due to her choosing to pay by cheque (one of the methods they invite). It is this last statement that makes me believe her assertion that she paid in time is likely true and that the delay was caused by Newham.
She then states that they explicitly suggested she write in to explain that she believed payment made in time and that they would look at the matter again. I see this as very relevant to excerpt you gave me from Davis; very understandably took the matter to be closed and particularly so since no OfR appears to have been received.

Currently missing:-

1/. Cheque book stub with a date of drawing the cheque, which I have asked her to find.

2/. Copy of the rejection letter as she daftly sent it back with payment. Hence I am stumped on the date of that rejection, the actual extended period offered and hence the deadline for payment.

3/. Any OfR

4/. Any breakdown of the bailiff charges now demanded, £410 (not 420 as I was told on the phone). Very relevant given the conflicting amounts on the Charge Certificate.

---------------------

On TEC forms - yep thanks, that's kinda what I thought was the best way so I'll print them for signing, scan in pdf and attach to e-mail.

---------------------

I am slightly concerned at the potential risks of this case.
Despite some indication of delay by Newham and my acceptance of the victim's belief to have paid, the real circumstances are yet to be revealed.

I believe she can honestly complete the TEC application with her belief and the info to hand BUT - it may transpire she is wrong.
Hence, if the application is routinely blocked by Newham, I'm unsure if a following N244 application would succeed (although Davis still helps if admissible).

Nevertheless, it is clear there has been an injustice here and especially so since the original PCN was issued unlawfully as far as I can see.

Thoughts anyone???
jdh
Does she write many cheques? The date of the next cheque may help with the timeline.
bama
QUOTE
BUT - Newham take so long to open any mail that this wasn't just a matter of clearing a cheque.

All councils take the stance that its the clearance date of the cheque that matters.
This is pure hogwash IMO (and makes them a few bob...)
provided the cheque is not dishonored it it is the date that it is received that is the payment date
(Bills of Exchange Act - a cheque is a Bill of Exchange)
Enceladus
What has likely happened is that the case has been auto progressed whilst the letter is sitting in the mail sack for some unknown period of time. Even though the cheque might have arrived in time it will have been applied to the account after the discount expired. Payment was satisfied when the cheque reached Newham (or it's agents) not when the cheque was deposited and/or cleared.

You need to put a payment date on the WS to establish the ground claimed. You don't have time to request a copy of the cheque from the bank (probably will charge) or to ask Newham for a copy of the NOR etc. So I suggest you put your best guesstimate.

As you are well aware the priority is to get the bailiff's warrant suspended and ultimately revoked.

Get her to check her bank statements and see when the payment cleared. Wind back 3 working days to get the date the cheque was deposited. Wind back an allowance of calendar days for the time sitting in the council post room etc. I suggest 5 (that's the unknown) working days. Wind back 3 further working days to allow for the transit through royal mail.

On the TE7 OOT application make it clear that the date is an guesstimate as the matter was presumed closed and there is no documentation available. However be assertive and make it clear that the cheque was posted such that it would have arrived, in the normal course of post, before the discount period re-offered in the Notice of Rejection expired. And make it clear that no Order for Recovery was ever received, the first she became aware of an outstanding penalty was a letter from a bailiff. Hence she had no opportunity to submit an in time Witness Statement and now requires and extension of time.

Newham sometimes fail to oppose the OOT so you might strike lucky. However it's likely that they will oppose and then I would expect that the TEC will reject so I would start planning for an N244 application.

When the OOT is accepted then Newham will have to refer the case to PATAS if they wish to continue to enforce.

Always retain all original correspondence from the Council. And always examine the envelopes and make sure that the franking date, if present, agrees with the date of the letter. Retain the envelopes. Keep safe copies of anything posted to the Council and post them 1st class at the post-office counter. Obtain and keep safe a free of charge proof of posting. Or use fax but keep safe the transmission report.

I would also write to Newham and ask for a copy of the Notice of Rejection.
Neil B
All appreciated but I can't be quite as rusty as I think as I seem to agree and had already done much of what you said.

QUOTE (Enceladus @ Sun, 12 Jan 2014 - 21:01) *
What has likely happened is that the case has been auto progressed whilst the letter is sitting in the mail sack for some unknown period of time. Even though the cheque might have arrived in time it will have been applied to the account after the discount expired. < Our thoughts exactly. Payment was satisfied when the cheque reached Newham (or it's agents) not when the cheque was deposited and/or cleared. < Thanks for confirming that.

You need to put a payment date on the WS to establish the ground claimed. You don't have time to request a copy of the cheque from the bank (probably will charge) or to ask Newham for a copy of the NOR etc. So I suggest you put your best guesstimate. <See below.

As you are well aware the priority is to get the bailiff's warrant suspended and ultimately revoked.

Get her to check her bank statements and see when the payment cleared. Wind back 3 working days to get the date the cheque was deposited. Wind back an allowance of calendar days for the time sitting in the council post room etc. I suggest 5 (that's the unknown) working days. Wind back 3 further working days to allow for the transit through royal mail. < She has done and, with at least one weekend intervening, the likely result does appear to be as we suspected.

On the TE7 OOT application make it clear that the date is an guesstimate as the matter was presumed closed and there is no documentation available. However be assertive and make it clear that the cheque was posted such that it would have arrived, in the normal course of post, before the discount period re-offered in the Notice of Rejection expired. < Have done - both. Rather than guessing a date on a 'Statement of Truth', have given a month on the TE9 (not TE7) and then explained both the vagueness and reiterated the assertion of belief on an attachment.

And make it clear that no Order for Recovery was ever received, the first she became aware of an outstanding penalty was a letter from a bailiff. Hence she had no opportunity to submit an in time Witness Statement and now requires and extension of time. < Ah, update. She has now realised that she also sent back the OfR, without understanding her options. This is potentially not helpful BUT she WAS invited to write again for Newham to reconsider the matter. Moreover, she has now stated to me that when she phoned them, on receipt of what we now know was the OfR, a Council Officer stated that to write to THEM again was her ONLY option. I don't know about you but I can quite believe that.

Newham sometimes fail to oppose the OOT so you might strike lucky. However it's likely that they will oppose and then I would expect that the TEC will reject so I would start planning for an N244 application. < Yep, advised her of that and the potential cost + 'bailiff window' and possibility of costs escalating.

When the OOT is accepted then Newham will have to refer the case to PATAS if they wish to continue to enforce. < I wasn't sure of this as the statement is 'PCN paid' but, of course, you are quite correct as usual. I certainly hope they do for an extra £65 cos the issue of the PCN was atrocious as far as I can see. I doubt you're surprised.

Always retain all original correspondence from the Council. And always examine the envelopes and make sure that the franking date, if present, agrees with the date of the letter. Retain the envelopes. Keep safe copies of anything posted to the Council and post them 1st class at the post-office counter. Obtain and keep safe a free of charge proof of posting. Or use fax but keep safe the transmission report. < I've told her and others a zillion times before!! So frustrating.

I would also write to Newham and ask for a copy of the Notice of Rejection. < I will suggest but prefer to phone initially, as we have to anyway tomorrow (Monday) to advise forms submitted to TEC - and get ya dogs off.



Many thanks again.

I think one of the benefits of the forum is just the reassurance and being able to get confirmation and further views.
You are obviously all still very dedicated.
Enceladus
QUOTE (Neil B @ Mon, 13 Jan 2014 - 02:33) *
I would also write to Newham and ask for a copy of the Notice of Rejection. < I will suggest but prefer to phone initially, as we have to anyway tomorrow (Monday) to advise forms submitted to TEC - and get ya dogs off.

The TEC will inform Newham electonically the same day, provided that the submission is received before 16:00 pm Mon-Fri.
2cupsofcoffee
Neil, although as E said, TEC will inform the council electronically, once you have sent the forms to TEC, you should also phone and followup with an email confirmation to, the council to tell them and get confirmation that they will put the bailiff on hold. My friend didn't inform the council - relying on the electronic feed - and the bailiff turned up that evening and refused to go away even when shown the emailed forms as he hadn't been called off by the council. When we phoned the council the next morning, apparently the feed isn't always checked if it "comes through too late".
hcandersen
Conjecture overload?

Issues:
1. Car might be clamped.
2. Need to submit WS and OOT as soon as possible.

1 and 2 are linked: do 2 and 1 should be resolved. So submit the forms electronically if possible and then contact the council to advise them.

OOT
Reasons - did not receive Order for Recovery following receipt of CC dated ****. Only made aware of OfR when letter received from bailiffs *****.

WS
Grounds - paid the penalty charge in full.


What else needs to be done? If OP and their friend continue to examine issues then time might well overtake them. For example, if the issue of payment being sent/actioned by the council is on the margins, then the OP isn't going to be able to prove payment in time because of the variables of cheque date v when actually posted v properly addressed and first-class stamp/second etc. So don't concern yourself. Clearly payment was credited (my understanding of the CC is: penalty £130, surcharge 50% = £195, less sums already paid £65 = £130)

There's nothing special about this issue, it's simply one of the many breakdowns in communication which can occur. The OOT has nothing to do with your grounds for submitting the WS, only why it's late.
roythebus
Surely as a the driver of a Motability car the driver is entitled to a Blue Badge?
Neil B
QUOTE (roythebus @ Tue, 14 Jan 2014 - 08:10) *
Surely as a the driver of a Motability car the driver is entitled to a Blue Badge?


Yes Roy, she has one.

I thought it a bit premature to discuss the actual PCN yet and the badge would not directly be relevant.

If you're interested, it was a straightforward case of loading, requiring assistance from the shop.
Committed the horrendous crime of using a loading bay immediately outside --- to --- erm --- load!

Car was in a disabled bay about 6 minutes walk away while she actually did the shopping; She left the shop to go and get the car, brought it around to the loading bay and went back in the shop to tell them she was ready.
It's CCTV and shows no activity for 5 1/2 minutes but that's simply because she had to wait for assistance. Ultimately, the CCTV operator SAW her car being loaded in a loading bay.
Fairly easy one.

I can't wait to get a copy of the rejection she daftly sent back with payment; We can already guess the crap it contains.
Neil B
QUOTE (hcandersen @ Mon, 13 Jan 2014 - 11:42) *
Conjecture overload?

Issues:
1. Car might be clamped.
2. Need to submit WS and OOT as soon as possible.

1 and 2 are linked: do 2 and 1 should be resolved. So submit the forms electronically if possible and then contact the council to advise them.

OOT
Reasons - did not receive Order for Recovery following receipt of CC dated ****. Only made aware of OfR when letter received from bailiffs *****.

WS
Grounds - paid the penalty charge in full.


What else needs to be done? If OP and their friend continue to examine issues then time might well overtake them. For example, if the issue of payment being sent/actioned by the council is on the margins, then the OP isn't going to be able to prove payment in time because of the variables of cheque date v when actually posted v properly addressed and first-class stamp/second etc. So don't concern yourself. Clearly payment was credited (my understanding of the CC is: penalty £130, surcharge 50% = £195, less sums already paid £65 = £130)

There's nothing special about this issue, it's simply one of the many breakdowns in communication which can occur. The OOT has nothing to do with your grounds for submitting the WS, only why it's late.


I think you might have missed my previous post.
TE9 and TE7 had been submitted Sunday night by e-mail.

I fully agree that conjecture about payment date is pointless until we know but I was just confirming what I suspected with Enceladus as we both have considerable experience of this Council and, in particular, the likelihood that delays are due to them.

The crucial bit I think you missed was that I now have a problem -- in that she remembered she probably DID receive the OfR and simply didn't realise her responsibilities/options.
On the face of it a big problem --- BUT
She states that she phoned Newham on receipt and they specifically told her the ONLY option was to write to THEM again for reconsideration.
I had no option but to be honest on the TE7 and state this as the reason for being late. I have no idea how that will be viewed but I believe she is being truthful.

Re clamping;
It helps that the car is Mobility and, even better, it's currently with them for repair and not expected back until late this week earliest.

hcandersen
On 12th you posted:

I queried the absence of an OfR with her when I saw the docs on Friday.
No explanation and she doesn't appear to recognise what I'm talking about --- so --- I can only assume it didn't arrive -- but rather odd.


When did this change to:

I now have a problem -- in that she remembered she probably DID receive the OfR

As you apparently didn't find one, and given all other factors, how did you become so convinced so as to not include this within your OOT?

Anyway, it's submitted now (something is, we haven't seen it) so we all have to do is wait.
Neil B
QUOTE (hcandersen @ Tue, 14 Jan 2014 - 14:26) *
On 12th you posted:

I queried the absence of an OfR with her when I saw the docs on Friday.
No explanation and she doesn't appear to recognise what I'm talking about --- so --- I can only assume it didn't arrive -- but rather odd.


When did this change to:

I now have a problem -- in that she remembered she probably DID receive the OfR

As you apparently didn't find one, and given all other factors, how did you become so convinced so as to not include this within your OOT?

Yep, I posted that early on Sunday, then saw her later and as I'd queried the absence of the OfR on Friday she suddenly recalled that was probably the "other letter" she sent back to the Council when invited to write again (outside process) to ask for reconsideration.

QUOTE (Neil B @ Mon, 13 Jan 2014 - 02:33) *
QUOTE (Enceladus @ Sun, 12 Jan 2014 - 21:01) *

And make it clear that no Order for Recovery was ever received, the first she became aware of an outstanding penalty was a letter from a bailiff. Hence she had no opportunity to submit an in time Witness Statement and now requires and extension of time. < Ah, update. She has now realised that she also sent back the OfR, without understanding her options. This is potentially not helpful BUT she WAS invited to write again for Newham to reconsider the matter. Moreover, she has now stated to me that when she phoned them, on receipt of what we now know was the OfR, a Council Officer stated that to write to THEM again was her ONLY option. I don't know about you but I can quite believe that.


It is bemusing initially but the reality is that the complexities of CPE procedure are also a mystery to the average person.

It is obviously a big worry but we are talking 'old school' here; Many people, like my older friend, see Councils in the same way they used to be viewed -- a body of authority that you could trust and that really did serve the local community. They issued the "ticket" so they must be the people to talk to ---'because all this writing on their forms is confusing'
She sought their advice and trusted them and, ultimately, has been misled.

You may well view this as stupid; So do I, especially since I've won four or five for the family before, including two trips to PATAS.
How on Earth it didn't sink in to never return documents and to always read them -- and check with me if unsure, I don't know.
It's happened and I can only try because there have certainly been injustices along the way.

I couldn't do much with the OOT other than to tell the truth. I'll post it up when edited of name and VRM, etc.
If I've balls-up, so be it but I won't do anything other than tell the truth.

Neil B
UPDATE.

I've been worried about this given that the actions of the appellant, in not understanding the OfR and acting appropriately on it, may well be seen as inexplicable.

On that matter, however, some useful evidence has come to light.
I don't really want to post anything here just now as Sheila at BAO will be dealing with this later today.

More immediately, an interesting event >>>

OOT application refused, pretty much as expected.
I now have a copy of the Council objection to OOT and, frankly, unless I've lost the plot, it is pants crap and should have been ignored by the Court Officer.

Other than to state 'we contest' it DOES NOT give any reason at all?
It does not address or contend the reason we gave for delay but instead prattles on about the PCN itself?? It directly addresses the reason given on the TE9 and NOT the TE7.

On my understanding, the Court Officer should have had no choice but to ignore the Council submission and allow the OOT application.

Am I correct or have I gone cuckoo?
bama
AIUI yes they must give a reason in their 'statement'
notice how the TEC guidance
http://www.davidmarq.com/bama/Court%20Offi...version%201.pdf
doesn't even cover looking at the LA's side of the paperwork
good job the dice aren't loaded...
the correspondence process document has this
QUOTE
7.8 The local authority should either serve a copy of the rejection on the
respondent or provide TEC with two copies. If it has not been served and a
copy is not received this may result in a delay in referral to the court officer

do you have that second copy ?
Neil B
QUOTE (bama @ Tue, 4 Feb 2014 - 11:34) *
do you have that second copy ?


What I've e-mailed you is all she has received, in the singular.

I was expecting it to be drawn up as a SoT but seems curiously informal and casual - apart from apparently addressing the irrelevant.

Have you seen it?
bama
Nope
and what was put on the OOT ?
Neil B
QUOTE (bama @ Tue, 4 Feb 2014 - 12:34) *
Nope
and what was put on the OOT ?


I e-mailed the mentioned doc to you but will go off to see if i sent to right (current) address.

I'll send you the OOT as well.

Thanks.

give me a tic.

Ok - now sent to correct e-mail bama (the one you sent me docs from recently).

thanks.
Neil B
Well this one is still rolling.

I really don't want to go into all the detail right now as there has been so much.
Two other forum members have the detail, including Sheila.

I'm fairly confidently off to N244 hearing on Friday and will announce the outcome.

------------------
I have a problem and a question for you lovely people.

This PCN was indeed paid and the Witness Statement submitted stated so.

Having seen the details of the original PCN it was a typical Newham ignoring of obvious facts in reps and rejecting. Victim subsequently paid at discount but absolutely should not have done so. It was a virtually cast iron loading scenario and on CCTV so easy to verify.

Now obviously I know the rule -- It's paid so forget it --- BUT --

I really want to get this to Adjudication and I think the law supports the possibility.

Reading s23 of the General Regs it is quite clear what should happen once the Witness Statement is accepted.

23.
(2) The witness statement must state one and only one of the following—

(a)that the person making it did not receive the notice to owner in question;
(b)that he made representations to the enforcement authority under regulation 4 of the Representations and Appeals Regulations but did not receive from that authority a notice of rejection in accordance with regulation 6 of those Regulations;
©that he appealed to an adjudicator under regulation 7 of those Regulations against the rejection by the enforcement authority of representations made by him under regulation 4 of those Regulations but—
(i)he had no response to the appeal;
(ii)the appeal had not been determined by the time that the charge certificate had been served; or
(iii)the appeal was determined in his favour; or
(d)that he has paid the penalty charge to which the charge certificate relates.

(5) Where a witness statement is served under paragraph (1)©—

(a)the order of the court shall be deemed to have been revoked;
(b)the charge certificate shall be deemed to have been cancelled;
©in the case of a statement under paragraph (2)(a), the notice to owner to which the charge certificate relates shall be deemed to have been cancelled; and
(d)the district judge shall serve written notice of the effect of service of the statement on the person making it and on the enforcement authority concerned.
(6) Subject to regulation 20, service of a witness statement under paragraph (2)(a) shall not prevent the enforcement authority from serving a fresh notice to owner.

(7) Where a witness statement has been served under paragraph (2)(b), © or (d), the enforcement authority shall refer the case to the adjudicator who may give such directions as he considers appropriate and the parties shall comply with those directions.

On the face of it, no problem.
BUT
I haven't ever actually seen an Order made by TEC that makes it clear that a PCN must now be referred to, in this case, patas. Also, TEC have verbally told me they only ever make one kind of order, to revoke OfR, CC and NtO but none with wording that refers to the Adjudicator.
It seems the decision on whether to go to the adjudicator is left with the Enforcement Authority. Just another bit of bad practice that has been allowed to become the norm?

To throw yet another spanner in the works, Newham have now decided they accept that the PCN has been paid (but have already made a Statement of Truth opposing it??)

So they certainly won't be referring this to patas -- but am I right in thinking that they have to?? (s23).

Answers on a postcard please -- or here if easier.
2cupsofcoffee
Neil - is this any use - Newham having to refund, so obviously it does get to an adjudicator sometimes. I know I've seen other cases where the council has been directed to refund, but didn't note them at the time.
Case Reference: 2140139600
Appellant:
Authority: Newham
VRM:
PCN: PN09229621
Contravention Date: 10 Oct 2013
Contravention Time: 11:25
Contravention Location: Tennyson Road
Penalty Amount: £80.00
Contravention: Parked in a residents or shared use parking place displaying an invalid permit, voucher or ticket
Decision Date: 08 May 2014
Adjudicator: Gerald Styles
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner & forthwith ENSURE FULL REFUND TO APPELLANT OF SUMS RECEIVED IN RESPECT OF THIS PENALTY CHARGE.

Reasons: I have recognised that a visitor or similar permit to be treated as valid needs to be completed correctly and displayed in a manner that it remains in a secure position where the details can be read for inspection purposes.

In this case the Council has pursued the penalty charge on the basis that the inspecting officer could not see the year panel which is located towards the foot of the permit document.

The photographs from the officer suggest to me that the screen may have at its foot a rectangular dark panel which perhaps from some angles may lead to difficulty in reading part of a document such as a permit.

I have however considered in this case that the officer photographs probably exaggerate the difficulty in viewing the crucial year. The appellant no doubt will be mindful of difficulties of this nature in future and avoid repetition but so far as the present case is concerned I have decided to allow the appeal and order cancellation of the statutory notices seeking the penalty charge. I have considered that with perhaps more craning the inspecting officer may well have been able to distinguish the relevant year and confirm it is as correct.

I have on that basis recorded the present appeal as allowed.

I understand that the appellant has made payment of the penalty charge.

I am directing that the total paid be refunded by the Council forthwith.
hcandersen
Can we identify the issues here please.
You have submitted an OOT which was refused. You have submitted an N... and have a hearing. This will determine whether the WS is to be considered. As the WS stated that the penalty charge had been paid, then the provisions of 2(d) would apply. Whether an EA refer the matter to adj or not has nothing to do with TEC, their task is simply to cancel the OfR and instruct the authority to cancel the CC, they don't regulate EAs (if only somebody did!). The duty to refer the matter to adj has nothing to do with TEC but is a duty which falls to the EA by virtue of the law and an EA's duty is clear, as you've posted. So, what's the problem?
Cancellation of the OfR would put paid to the bailiffs. Cancellation of the CC would put paid to another warrant. These are the important issues because without the warrant the authority have nowhere to go if they want to pursue the issue other than to go to adj. Their warrant has been cancelled and won't be re-issued until they serve a fresh CC which they may not do until after adj.
It's all down to the DJ. Good luck.
DancingDad
Have the letter (email to the bossman) ready for after the hearing, with the regs printed and highlighted. And demand the right to go to adjudication.
Once the witness statement has been accepted by TEC, Newham have no discretion in the matter, they must refer.

Having seen the letter Newham wrote, it is clear that they simply want to walk away with the discounted payment and close the case.
And in many cases, that would also suit the applicant. So a referral to adjudicator on PCN already paid with no further dispute by council would be simple rubber stamp job.

In terms of the bailiffs and additional charges, that is good news.
In terms of the fairness of the PCN enforcement in this case, being forced to go to court (and pay for the privilege) it stinks. Be nice if the DJ would direct Newham to refer to adjudicator but strictly speaking they should only be ruling on the OOT.

First hurdle is the hearing in court. Concentrate on that. Lets just take each step as they come.
Enceladus
I don't get the rationale behind your post #30 above. The N244 hearing is not yet determined or have I missed something? Due this Friday?

The rules for referral are in regulation 23 of the General Regulations.

Have you got a copy of the Statement of Truth from Newham? Please post it up.

Are there any changes of address involved?
hcandersen
Can we forget about referral. If the OP is successful at the N244 hearing, then the warrant and CC would be cancelled. In reality who the hell cares what the EA do, they've nowhere to go other than to adj if they want to pursue the matter. So, if they don't go, so what?
Unless there's another agenda here regarding arguing a case (for what?) in front of an adj. Is the OP considering trying to reopen the whole case in an effort to recover the penalty or to get the EA's a**e kicked in an adj decision, or what?
Neil B
QUOTE (hcandersen @ Mon, 2 Jun 2014 - 21:14) *
Whether an EA refer the matter to adj or not has nothing to do with TEC, their task is simply to cancel the OfR and instruct the authority to cancel the CC, they don't regulate EAs (if only somebody did!).
Indeed; Someone needs to.

QUOTE (hcandersen @ Mon, 2 Jun 2014 - 21:14) *
The duty to refer the matter to adj has nothing to do with TEC but is a duty which falls to the EA by virtue of the law and an EA's duty is clear, as you've posted. So, what's the problem?
The likely reality, as you say below
QUOTE (hcandersen @ Mon, 2 Jun 2014 - 21:14) *
because without the warrant the authority have nowhere to go if they want to pursue the issue other than to go to adj.

It's the 'if' that concerns me.
Sorry I didn't explain because I didn't want to go through every event of the last three months.
Newham have actually surrendered, but conditionally.
They claim to have instructed Newlyn to return the warrant to TEC but want to leave it that they keep the amount paid.
Having seen the events of the PCN itself I am simply not prepared to allow them to do that; edit.

The N244 hearing remains history because their original Statement opposing OOT is on record and may need to be dealt with.
They may well have effectively surrendered but the matter is already in the hands of the Court, to be decided.

-----------

Thanks 2cups for the case. The problem i'm worried about is getting the case heard.

As DD says, I'm also jumping the gun in worrying about this yet. It's just been so infuriating to deal with these vicious muppets.

When it comes to it, I'll press Newham as DD suggests and also approach PATAS with a request for a hearing, again quoting the Regs.


QUOTE (hcandersen @ Mon, 2 Jun 2014 - 21:14) *
Whether an EA refer the matter to adj or not has nothing to do with TEC, their task is simply to cancel the OfR and instruct the authority to cancel the CC, they don't regulate EAs (if only somebody did!).
Indeed; Someone needs to.

QUOTE (hcandersen @ Mon, 2 Jun 2014 - 21:14) *
The duty to refer the matter to adj has nothing to do with TEC but is a duty which falls to the EA by virtue of the law and an EA's duty is clear, as you've posted. So, what's the problem?
The likely reality, as you say below
QUOTE (hcandersen @ Mon, 2 Jun 2014 - 21:14) *
because without the warrant the authority have nowhere to go if they want to pursue the issue other than to go to adj.

It's the 'if' that concerns me.
Sorry I didn't explain because I didn't want to go through every event of the last three months.
Newham have actually surrendered, but conditionally.
They claim to have instructed Newlyn to return the warrant to TEC but want to leave it that they keep the amount paid.
Having seen the events of the PCN itself I am simply not prepared to allow them to do that; edit.

The N244 hearing remains history because their original Statement opposing OOT is on record and may need to be dealt with.
They may well have effectively surrendered but the matter is already in the hands of the Court, to be decided.

-----------

Thanks 2cups for the case. The problem i'm worried about is getting the case heard.

As DD says, I'm also jumping the gun in worrying about this yet. It's just been so infuriating to deal with these vicious muppets.

When it comes to it, I'll press Newham as DD suggests and also approach PATAS with a request for a hearing, again quoting the Regs.


QUOTE (hcandersen @ Mon, 2 Jun 2014 - 22:01) *
Is the OP considering trying to reopen the whole case in an effort to recover the penalty

That one! Why, after all this, should I not try and recover money she was conned into paying.

Any a**e kicking can come later via the appropriate channels.
Enceladus
At the N244 hearing also ask for your filing fee to be refunded. Whether or not it it actually be refunded is a different matter. But if you don't ask then you certainly won't get.
Neil B
QUOTE (Enceladus @ Mon, 2 Jun 2014 - 22:40) *
At the N244 hearing also ask for your filing fee to be refunded. Whether or not it it actually be refunded is a different matter. But if you don't ask then you certainly won't get.
Yes, thanks 'E'.
With Newham back-pedalling she thought she didn't have to attend now but that alone is a reason to attend I explained to her.

---------
Sorry tonight's posts didn't make much sense without the interim events but it's been a rollercoaster ride and i'm confidently sorted on the facts and our position.
I simply don't have time to describe it all here and post all of the docs.
2cupsofcoffee
Neil, re their supposed statement of truth - if you don't think it will annoy the judge, do make reference to the fact that "people" are 'threatened' with fines/jail for not telling the truth all over the forms that they have to sign, but councils seem to get away with murder.

our council also 'mis-stated' a rather vital fact about the warrant not being reissued to correct address - we're shortly moving on to the LGO with that one. If you can't get it heard at PATAS, LGO may be another option, albeit drawn out and they are very picky about what cases they take on.
Neil B
2cups thanks again.

I tried to e-mail you last week but it wouldn't go through.

If ya don't mind, push my button again please; Oeerrrr misssus.

So I can check correct address.
2cupsofcoffee
Fnor, fnor! email sent!
DancingDad
Just to add a little detail for Neil
Lady got OFR
Phoned council to ask why as pcn had been paid. Discount rate.
Was told by council to write to council explaining.
So did. Council ignored letter
A while later, bailiffs letters.
Witness statement stating pcn paid and out of time saying that she relied on council advise and thought OFR had been dealt with.

Newham objected to OOT by stating that discount payment had been made late.
TEC accepted and rejected OOT
Neil B
Just a very quick note cos I am sooooo busy with work today

But Dancing Dad and 2cups will be waiting on this.

Ok N244 hearing successful. Order made to accept Witness Statement OOT.

However, it was not at all good. Judge outright refused to refund filing fee or Order Newham to do so.

The reasons he gave were ---------- edit.

-------------------------

Sorry I'm busy rest of day but full details tomorrow.

thanks to those who helped in the background.

DancingDad
Judges can be so uncooperative.
Send details when you can. Methinks we need to get costs out of PATAS.
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